Karnataka High Court

Sri. Karunakaran vs Maruthi Manjunatha on 22 March, 2022

Bench: Pradeep Singh Yerur

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF MARCH, 2022

                        BEFORE

     THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

              M.F.A. NO.5262 OF 2020 (MV)

BETWEEN:
       SRI KARUNAKARAN
       S/O.MARIYAPPA
       AGED ABOUT 37 YEARS
       R/AT T.R.KRISHNA REDDY BUILDING
       THIRUPALYA, JIGANI HOBLI
       ANEKAL TALUK
       BENGALURU - 560 099
                                          .. APPELLANT
       (BY SRI UDAYA KUMAR R.L., ADVOCATE)
AND:
1.     MARUTHI MANJUNATHA
       LOGISTICS PRIVATE LIMITED
       NO.1, NANJAPPA BUILDING
       MARUTHI LAYOUT MAIN ROAD
       DASARAHALLI H.A.
       FARM POST
       BENGALURU - 560 024

2.     THE UNITED INDIA INSURANCE
       COMPANY LIMITED
       REGIONAL OFFICE, 5TH FLOOR
       KRUSHI BHAVAN
       NRUPATHUNGA ROAD
       HUDSON CIRCLE
       BENGALURU - 560 027
                                      ... RESPONDENTS
     (BY SMT.MANJULA N.TEJASWI, ADVOCATE FOR R-2;
NOTICE TO R-1 IS DISPENSED WITH V.O.D.14.07.2021)

                          ***
                               2

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.12.2019
PASSED IN MVC NO.7412/2017 ON THE FILE OF THE X
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT,
BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION   AND    SEEKING  ENHANCEMENT    OF
COMPENSATION AND ETC.

     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

This is an appeal preferred by the claimant being

aggrieved by the judgment and award dated 21.12.2019

passed in MVC No. 7412/2017 before the Court of Small

Causes and MACT, Bengaluru, (SCCH-16) and seeking for

an enhancement of the compensation.

2. Though this matter is listed for admission, with

the consent of both the learned counsel the same is taken

up for final disposal.

3. Heard learned counsel Mr. Uday Kumar.R.L.,

learned counsel for appellant and learned counsel Smt.

Manjula M.Tejaswi, learned counsel for respondent No.2.

4. Brief Facts:

On 19.05.2017 at about 01.45 pm while the claimant

was standing on the extreme left side of the footpath

attached to Hebbagodi - Thirupalaya Road near a hotel, at

that time, a car bearing registration No. KA-04 AB=1592

driven by its driver in a rash and negligent manner and in

high speed came and dashed against a cyclist and then hit

the claimant. Due to which, the claimant fell down and

sustained grievous injuries. He was immediately shifted to

Sparsh Hospital, where he was inpatient and underwent

surgery. He was aged 34 years, working as Production

Executive and earning Rs.25,000/- per month. In the

accident he suffered permanent disability and lost earning

capacity. Therefore, he initiated a claim petition seeking for

compensation.

5 On service of notice, the respondent No.1, who

was the owner of the car remained absent and was placed

exparte, whereas the respondent No.2 - the Insurance

company, appeared and filed its statement of objections. It

denied the claim made by the claimant, inter alia, also took

up a plea that the accident occurred due to the fault of the

claimant and contended that the respondent No.1 -driver of

car was not holding a valid driving license as on the date of

accident. The respondent No.2 - Insurer admitted

coverage of the policy and validity of the same. Hence,

denied the liability on itself to pay the compensation and

sought for dismissal of the claim petition.

6. On the basis of the pleading the Tribunal

framed relevant issues and put the parties to trial.

7. In order to prove and establish his case, the

claimant got examined himself as PW1 and got marked

Ex.P1 to P14. He also got examined a Doctor as PW2 -

Dr.Nagaraj B.N. in support of his case.

8. The respondent No.2 - Insurer, on the other

hand, did not step into the witness box or neither lead any

evidence to counter the case of the claimant nor they

produced any documents in support of their case.

9. After hearing both sides and providing sufficient

opportunity to both parties, the Tribunal came to the

conclusion that the claimant would be entitled for a

compensation in a sum of Rs.2,17,700/- with interest at the

rate of 9% per annum (Excluding future medical expenses

of Rs.20,000/-) from the date of claim petition till the date

of payment. The Tribunal held both the respondents jointly

and severally liable to pay compensation, but, directed

respondent No.2 - Insurer to pay the compensation thereby

to indemnify respondent No.1 - Owner.

10. Being aggrieved by the Judgment and award of

the Tribunal, the claimant has preferred this appeal seeking

for enhancement.

11. The point that would arise for consideration is

as to whether the Tribunal has awarded Just and

reasonable compensation commensurate to the injuries

suffered by the claimant in the accident occurred on

19.05.2017?

12. Learned counsel for the claimant vehemently

contended that the impugned judgment and award passed

by the Tribunal is contrary to the material evidence both

oral and documentary and hence, same is erroneous in law

and requires interference at the hands of this Court. He

further contends that the doctor, who adduced evidence as

PW2, has clearly stated that there is disability to the extent

of 39% to a particular limb and 13% to whole body.

However, Tribunal has assessed the disability at 13%,

which is erroneous and deserves to be interfered by this

Court.

13. Learned counsel for claimant further contends

that tribunal has erred in not taking into consideration the

avocation and proper income for calculation of

compensation, in the present case on hand, and thereby

committed mis-carriage of justice to the claimant. He

further contends that Tribunal has erred in not awarding

loss of future earning capacity and loss of income during

laid up period. He further contends that Tribunal has lost

site of the facts and circumstances of the case and has not

properly appreciated material evidence on record. He

further contends that that the Tribunal has erred in

awarding reasonable compensation on all other heads in

view of the claimant being a skilled worker and having

sustained serious injuries causing permanent disability

effecting his future earning capacity. Hence, on those

grounds he seeks to allow the appeal and enhance the

compensation.

14. Per contra, learned counsel Smt. Manjula N.

Tejaswi, learned counsel for respondent No.2 - Insurer

vehemently contends that judgment and award passed by

the Tribunal is reasoned and considered order and the

Tribunal has considered all aspects of income, multiplier,

loss of future income so also pain and sufferings and

accordingly awarded just and reasonable compensation and

the same does not warrant interference by this Court.

15. Learned counsel for respondent No.2 - Insurer

further contends that in view of the fact that claimant has

not produced any cogent material evidence with regard to

proof of his income the Tribunal has rightly assessed his

income and requirement of enhancement of the same does

not arise for consideration in view of non-production of the

material evidence to that effect. She further contends that

disability has been arrived by the Tribunal based on the

evidence lead by Doctor as PW2 and accordingly there is no

requirement of interference under this head.

16. Learned counsel for respondent No.2 - Insurer

further contends that in the absence of any material placed

before the Tribunal, it has rightly not awarded any

compensation towards loss of future income due to

permanent disability and also under head of loss of income

during the laid up period. She further contends that the

Tribunal is right in assessing the disability at 13% in view of

the fact that doctor has assessed the disability prior to

removal of implants as disability requires to be assessed

after completion of full treatment and not when the

implants are still in the body. Therefore, under these

circumstances, when implants are in the body the

assessment of the disability by the doctor is not permissible

and such assessment of disability is premature and the

same is on the higher side.

17. Learned counsel for respondent No.2 - Insurer

further contends that other compensation awarded under

the other heads by the Tribunal is commensurate with the

injuries sustained and no interference is called for by this

Court. She further contends that though claimant has

made many attempts to show that he is working as a

Production Executive, no material is produced before the

Tribunal. Hence, income cannot be taken as pleaded in the

claim petition by the claimant. She further contends that

she has not preferred any appeal against the judgment and

award passed by the Tribunal and shall not seek for any

reduction. In fact, she submits that the Tribunal awarded

excess compensation. Hence, she submits that the appeal

does not merit consideration and the same requires to be

dismissed.

18. Having heard the learned counsel for appellant

and respondent No.2 this Court will have to decide as to

whether the compensation awarded by the Tribunal is just

and reasonable and whether the claimant is entitled for

enhancement.

19. It is not in dispute that the accident occurred on

19.05.2017 at 01.45 pm while the claimant was standing

on the extreme left side of the footpath attached to

Hebbagodi - Thirupalaya Road near a hotel, at that time, a

car bearing registration No. KA-04 AB=1592 driven by its

driver in a rash and negligent manner and in high speed

came and dashed against a cyclist and then hit the

claimant. Due to which, the claimant fell down and

sustained grievous injuries. He was immediately shifted to

Sparsh Hospital, where he was inpatient and underwent

surgery.

20. The claimant has examined himself and got

marked Ex.P1 to P6, which are police records, such as, FIR,

Complaint, charge sheet, spot mahazar, IMV report and

wound certificate. Admittedly, criminal case is registered

against the driver of the offending car. After conducting

investigation and enquiry, Police have laid a charge sheet.

These records are not put to challenge even by the driver of

the car or respondent No.2 - Insurer.

21. No contra material evidence is placed before

the Court to prove that these police records are not

authentic and there is challenge made to the charge sheet

laid by the Police. So also, there is no contra material

evidence to prove that the criminal case registered against

the driver of the case has been challenged or set aside

before the competent jurisdictional Court. When such being

the case, it has to be infered that the driver of the car was

responsible of rash and negligent manner of driving and for

occurrence of the accident.

22. Now, coming to the aspect of avocation, age

and income of the claimant though it is stated in the

evidence and pleadings that the claimant was working as

Production Executive in a private firm and was earning

salary of Rs.25,000/-. No material evidence is placed

before the Tribunal for such income being drawn by the

claimant. However, claimant has produced Ex.P12, which is

notarized copy the Diploma certificate to show that he is

technically qualified. However, in the absence of any

material proof of income the Tribunal, left with no other

alternative, not considered mere statement made by the

claimant with regard to his earning capacity being in private

firm. Therefore, Tribunal held that claimant is not entitled

for compensation under the head loss of future income due

to the disability.

23. It is further noticed that the claimant has got

examined doctor - PW2, who stated in his evidence that the

claimant has suffered disability to the extent of 30% to the

lower limb and to the whole body 13%. It is also not in

dispute that PW2-Doctor, who conducted surgery. On

consideration of the evidence of PW2, the Tribunal has

arrived at a finding that though doctor has assessed

disability to the extent of 39% to the lower limb and 13%

to the whole body, the same cannot be taken into

consideration for the reason that the disability has been

assessed by the doctor prior to the completion of

treatment. Therefore, Tribunal assessed by at 8% to the

whole body.

24. On consideration of the said evidence adduced

by the doctor and evidence of PW1 with regard to his

disability and income, the Tribunal has come to a conclusion

that it is for the claimant to prove the disability effect his

avocation and reducing his earning capacity. Even though

there is no material to show that there is disability which

affects the earning capacity of the claimant and reduction in

his income, the Tribunal has awarded Rs.80,000/- towards

physical disablement and has not assessed loss of future

earning capacity, taken into consideration the medical

evidence by the doctor as PW2 and evidence of PW1

claimant himself.

25. To counter these arguments learned counsel for

respondent No.2 - Insurer contended that in the absence of

any material evidence placed before the Court by the

claimant with regard to loss of earning capacity or loss of

income due to disablement or injuries suffered by the

claimant, the Tribunal is right in not awarding any

compensation under the head loss of future income due to

permanent disability and also loss of income during the laid

up period.

26. In my opinion, this contention of the learned

counsel for respondent No.2 - Insurer cannot be accepted

for the reason that admittedly in the present case on hand,

accident is not dispute and rash and negligent manner of

driving by the driver of the case is not controverted,

consequently, a criminal case has been initiated against the

driver of the car and there is no challenge made to the

charge sheet filed against the driver of the car, which has

caused grievous injuries to the claimant.

27. However, point that is seriously argued by the

learned counsel for respondent No.2 - Insurer is that no

material is produced before the Court by the claimant with

regard to loss of earning capacity and loss of reduction in

earning capacity of the claimant. Even the Tribunal has

made a finding to this effect. Whereas, the learned counsel

for claimant contends that though Tribunal has not come to

the conclusion that there is no loss of future earning

capacity but there is disablement to whole body at 8%, the

Tribunal ought to have awarded compensation towards loss

of earning capacity and the disability assessed by the

Tribunal at 8% is on the lower side. He further contends

that the Tribunal should have assessed disability at 33%

which has been spoken to by the PW2-doctor.

28. In the present case on hand, no doubt, claimant

has not produced any material proof to show his income.

However, he has produced document Ex.P12 to show that

he is a Diploma holder and he is a skilled worker. The

Tribunal ought to have taken notional income as prescribed

by the Legal Services Authority Chart for the relevant year

of accident being 2017, which has not been done in this

case, thereafter computation of the same with regard to

physical disability to assess loss of future earning capacity

which reduced value of earning capacity of the claimant.

29. Hence, on this grounds and in view of the

submission made by the learned counsel for the claimant

that Tribunal has erred in not computing loss of future

earning capacity and reduction value of earning capacity

due to his disablement suffered by the claimant. Therefore,

accident having occurred in the year 2017, the notional

income of Rs.11,000/- is to be taken as per the Legal

Services Authority Chart, even though there is no proof of

income.

30. In the present case on hand, admittedly

claimant has not produced any proof of income. Hence,

under such circumstance, the Curt will to do guess work

and for such purpose chart is provided. Accordingly, the

income of the claimant is taken as Rs.11,000/- per month.

31. PW2 - Doctor, who deposed before the Tribunal

that on clinical examination he found that there is

permanent disability to the lower limb of claimant at 39%

and whole body it is 13%. The Tribunal has also held that

there is nothing material elicited from the doctor to

disbelieve the evidence of expert, namely, PW2. Apart

from stating that the disability assessed by the doctor is to

be rejected because of the reason that disability assessed

prior to the treatment. However, Tribunal has assessed

disability at 8% as against 13% opined by the doctor. It is

no doubt true that disability has to be assessed pursuant to

the full treatment and while implants are in side the body of

the claimant. This would not be proper procedure to

evaluate the disability by a doctor. Therefore, Tribunal has

assessed the disability to the extent of 8%.

32. On the basis of this disability income is taken at

Rs.11,000/- per month, there is no dispute to the fact that

the claimant was aged 34 years as on the date of accident

and proper multiplier as per the judgment of the Apex

Court in the case of Sarla Verma (Smt) and others vs.

Delhi Transport Corporation and another, reported

in (2009) 6 Supreme Court Cases 121 would be 16,

which is not disputed by the respondents.

33. The loss of future income is to be assessed not

only on the basis of the claimant not able to earn the same

income as he was prior to the occurrence of the accident

and what is to be considered to compute the compensation

would be reduction in the earning capacity and reduction in

increment that claimant or person would get in future due

to the accident and due to the disablement. Hence, in the

present case on hand, the disability being arrived at 8% by

the Tribunal and income though is not established and on

the basis of notional income chart certainly permanent

disablement would effect future growth and earning

capacity of the claimant. Hence, I deem it appropriate to

award compensation under the head loss of earning

capacity. Therefore, under such circumstances, the loss of

future earning capacity due to the permanent disability

would be Rs.1,68,260/- (Rs.11,000/- X 12 X 16 X 13/100)

as against Rs.80,000/- awarded by the Tribunal under the

head physical disablement.

34. In view of the fact that the claimant has

suffered fracture and he was admitted to the hospital and

was inpatient for a period of 11 days, the Tribunal has

awarded towards attendant charges, extra nutritious food

and conveyance expenses a sum of Rs.12,000/-, I do not

find any reason to interfere with the same and the same is

retained.

35. In view of the fact that the claimant has

suffered fracture and he was admitted to the hospital and

was inpatient for a period of 11 days and under went

surgery to his left leg and thereafter for removal of

implants certainly claimant would have under gone for a

period of three months treatment for which period he has

not done work due to disability and treatment. Therefore,

it is just and reasonable to award a sum of Rs.33,000/-

(Rs.11,000/- X 3) towards loss of income during the laid up

period to the claimant, the Tribunal has not awarded any

amount under this head.

36. The Tribunal has awarded a sum of

Rs.50,000/- towards pain and sufferings, which I feel does

not call for interference and the same is retained.

37. The Tribunal has awarded Rs.15,604/-

towards medical expenses, which I feel does not call for

interference and the same are retained.

38. The Tribunal has awarded Rs.40,000/-

towards loss of future amenities and happiness, which is

just and reasonable and hence, it is retained.

39. Towards loss of future medical expenses the

Tribunal has awarded a sum of Rs.20,000/-. In view of the

statement made by the doctor with regard to another

surgery to be conducted for removal of implants certainly

claimant would incur expenditure to the extent of another

Rs.10,000/-. Accordingly, a sum of Rs.30,000/- is

awarded under the head loss of future medical expenses to

the claimant.

40. In view of the discussions made above, the

claimant would be entitled for the enhanced

compensation as mentioned in the table below.

   Sl.No.             Heads           Amount (Rs.)
     1.   Loss of future income      Rs.1,68,260=00
          (Rs.11,000/- X 12 X 16 X
          13/100)
     2.   Attendant charges, extra        12,000=00
          nutritious food and
          conveyance expenses
     3.   Pain and sufferings             50,000=00
     4.   Loss of income during laid      33,000=00
          up period
     5.   Medical expenses                15,604=00
     6.   Loss of future amenities        40,000=00
          and happiness
     7.   Future medical expenses         30,000=00
                              TOTAL:   3,48,864=00

31. In view of the discussions made above, I pass the following:

ORDER

i) The appeal is partly allowed.;

ii) Consequently, the judgment and award dated

21.12.2019 passed in MVC No. 7412/2017

before the Court of Small Causes and MACT,

Bengaluru, (SCCH-16), is modified.;

iii) The compensation awarded by the Tribunal in

a sum of Rs.2,17,604/- is enhanced to

Rs.3,48,864=00/- (Rupees three lakhs forty

eight thousand eight hundred & sixty four

only), with 6% interest from the date of claim

petition till its realization.;

iv) All other conditions imposed by the Tribunal

being left intact.;

v) The insurer shall pay the differential enhanced

compensation amount within a period of six

weeks from the date of receipt of a copy of

this judgment.